Several courts have adopted a nonsensical principle that, as one court put it, “[w]hen documents are prepared for dissemination to third parties, neither the document itself, nor preliminary drafts, are entitled to immunity.” Burton v. R.J. Reynolds Tobacco Co., 170 F.R.D. 481, 485 (D. Kan. 1997). Stated bluntly, that does not make sense. But even some circuit courts have adopted that curious approach.
In Taylor v. County of San Bernardino, the court articulated an odd variation on this theme: “[a]s to drafts of documents, the final versions of which may have been made public or provided to third parties, the privilege is not waived if the final version of the document is merely disclosed and not used offensively during the course of litigation.” No. 5:21-cv-02088-JGB-SHK, 2024 U.S. Dist. LEXIS 188487, at *17-18 (C.D. Cal. Oct. 16, 2024). Under this outlandish approach, a plaintiff offensively seeking to enforce a contract might have to disclose earlier private drafts of the contract, reflecting her lawyer’s advice.
Every so often an oddball case takes this approach. It would be refreshing if a court took this concept head on, and vigorously rejected it.
